dissenting:
I most respectfully dissent on the question of negligent infliction of emotional distress and on the question of delay damages.1
When the Pennsylvania Supreme Court opened the courthouse doors to bystander recovery for negligent infliction of emotional distress, it did so reluctantly and only after forceful prodding from one of its members.2 The test adopted in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) is that
the infliction of emotional distress is reasonably foreseeable ... when ... the plaintiff was located near the scene of the accident ...; [when] the shock resulted from a direct emotional impact upon the plaintiff from the sensory and *154contemporaneous observance of the accident ...; [when the] plaintiff and victim were closely related ...
Mazzagatti v. Everingham by Everingham, 512 Pa. 266, 276, 516 A.2d 672, 677 (1986). Defendants have a duty to and, consequently, are liable for injuries to foreseeable plaintiffs. Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928).
In Sinn v. Burd the mother who watched from the front porch of her home as a car struck and killed her child was found to be a foreseeable plaintiff and to have a cause of action for mental distress and its effects. Since Sinn v. Burd, the debate has centered on the meaning of “sensory and contemporaneous observance.” Id. 486 Pa. at 171, 404 A.2d at 685. In Yandrich v. Radic, 495 Pa. 243, 433 A.2d 459 (1981), the state supreme court held that a father who arrived on the accident scene after his son had been taken to the hospital had not stated a cause of action. Five years later the court reached the same conclusion in Mazzagatti, regarding a mother who arrived on the scene minutes after the accident and saw her child’s body in the street. Mazzagatti, 512 Pa. at 280, 516 A.2d at 679. The court reasoned that
where the close relative is not present at the scene of the accident, but instead learns of the accident from a third party, the close relative’s prior knowledge of the injury to the victim serves as a buffer against the full impact of observing the accident scene. By contrast the relative who contemporaneously observes the tortious conduct has no time span in which to brace his or her emotional system. The negligent tortfeasor inflicts upon this bystander an injury separate and apart from the injury to the victim.
Id. at 279-80, 516 A.2d at 679.
A father who followed an ambulance to the scene of an accident and saw his injured son in the street failed to state a cause of action. Brooks v. Decker, 512 Pa. 365, 516 A.2d 1380 (1986). And, in Bloom v. Dubois Regional Medical Center, 409 Pa.Super. 83, 597 A.2d 671 (1991), this court denied recovery to a husband who found his wife hanging by her neck in a hospital room, allegedly due to the failure of the hospital *155and her doctor to treat her suicidal tendencies. The panel held that the husband had not witnessed the tortious conduct, only its aftermath.
The next year, a panel of this court allowed recovery by a woman whose mother died in her arms after a doctor failed to diagnose or treat a serious heart ailment. The daughter had taken her mother for treatment and was present when the doctor was dismissive of the woman’s symptoms. Love v. Cramer, 414 Pa.Super. 231, 606 A.2d 1175 (1992). I dissented in Love on grounds that a lapse of seven weeks between the act of malpractice and the death rendered a “sensory and contemporaneous observance of the accident” an impossibility. Id. at 240, 606 A.2d at 1180-81. This court has also allowed a wife to recover when she saw a speeding vehicle heading for her husband’s car, heard the collision, and immediately realized her husband had been struck. Neff v. Lasso, 382 Pa.Super. 487, 555 A.2d 1304, allocatur denied, 523 Pa. 636, 565 A.2d 445 (1989).
The case at hand is distinguishable from those in which recovery has been allowed because Shirley Krysmalski did not observe the tortious conduct, only its aftermath. As the state supreme court reasoned in Mazzagatti “The feelings of anguish and bereavement suffered ... are not substantially different from those suffered by any parent who sees his or her dying injured child.” Mazzagatti, 512 Pa. at 280, 516 A.2d at 679. Krysmalski’s relationship to the accident which injured her children is most analogous to that in Brooks v. Decker because she was drawn to the accident scene by the commotion which followed the impact, just as Brooks was drawn to the scene of his son’s accident by the ambulance. Krysmalski did not observe Tarasovich’s car speeding toward her children as was true of the wife allowed recovery in Neff v. Lasso, supra.
Tarasovich also argues that the record is devoid of evidence that Shirley Krysmalski suffered the requisite physical manifestation of her emotional distress. The defendant misapprehends the law of negligent infliction of emotional distress.
*156Tarasovich relies on Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (1987), a case involving intentional infliction of emotional distress, in which the state supreme court held that medical evidence of a physical manifestation of the emotional distress is a requisite to recovery. Although the holding in Kazatsky was limited to cases of intentional infliction of emotional distress, Tarasovich argues the reasoning should be analogized to that for negligent infliction of emotional distress. In Kazatsky the court reasoned that “[i]t is basic to tort law that an injury is an element to be proven ... it is unwise and unnecessary to permit recovery ... without expert medical confirmation that the plaintiff actually suffered the claimed distress.” Id. at 197, 527 A.2d at 995. No case has addressed whether expert medical testimony is a requisite for a finding of negligent infliction of emotional distress. The record fails to offer evidence of medical treatment for Shirley Krysmalski. Her claim, Tarasovich argues, must therefore be denied.
Claims for negligent infliction of emotional distress are distinguishable from those for intentional infliction of emotional distress because intentional infliction is determined by the outrageousness of the defendant’s behavior while negligent infliction claims are determined by the foreseeability of the plaintiffs distress. See Sinn, supra; Kazatsky, supra. In claims for intentional infliction of emotional distress, the supreme court imposed the requirement of expert medical evidence of the distress as a counterweight to the ease with which fraudulent claims of outrageous behavior could be brought. A claim for negligent infliction would not need the same counterweight because the question of foreseeability already imposes a balance with which to weed out fraudulent claims. In addition, since punitive damages are not available for negligent acts, there is no need to impose an added test to balance the possibility of recovery. Therefore, there is neither need nor logic to support engrafting the requirement that only competent medical evidence can prove emotional distress onto a negligence case. Indeed, the court specifically held in Sinn v. Burd that “psychic injury is capable of being proven *157despite the absence of a physical manifestation of such injury.” Sinn v. Burd, 486 Pa. at 160, 404 A.2d at 679. Instead, the court imposed the limitation of “sensory and contemporaneous observance of the accident” as the bright line test to separate cases involving the shock of seeing the accident from those in which a parent’s inevitable grief comes to the fore. Sinn v. Burd, supra; Mazzagatti, supra; Brooks, supra.
A line of cases following Sinn v. Burd, supra, has refined the holding to require that physical injury must be averred to sustain a cause of action for negligent infliction of emotional distress. See Abadie v. Riddle Memorial Hospital, 404 Pa.Super. 8, 589 A.2d 1143 (1991) (demurrer sustained for failure to state a cause of action when plaintiff failed to allege physical harm from a raucous hospital staff birthday celebration while she was being treated); Wall by Lalli v. Fisher, 388 Pa.Super. 305, 565 A.2d 498, allocatur denied, 526 Pa. 636, 584 A.2d 319 (1989) (mother who witnessed a dog bite her child failed to aver physical injury to herself); Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981) (plaintiff who was charged with murder after hospital records were altered to blame him for a death and to conceal malpractice failed to aver physical harm and stated no cause of action for negligent infliction of emotional distress).
The requirement that physical harm must accompany emotional distress to state a cause of action is based on the Restatement (Second) of Torts § 436A which states:
If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.
Thus, our question becomes what is the quantum of bodily harm which must be averred to state a cause of action. Comment c to Section 436A of the Restatement (Second) of Torts posits that liability is dependent on the duration and the severity of the symptoms alleged. Temporary fright, nervous shock, nausea, grief, rage, and humiliation if transitory are not *158compensable harm; but, long continued nausea or headaches, repeated hysterical attacks or mental aberration are. This court applied the Restatement standards to a case in which the plaintiff averred “headaches, shaking, hyperventilation, nightmares, shortness of breath, lack of control over the bowels, and tightening of the muscles in the neck, back and chest” and found that she had stated a cause of action for negligent infliction for emotional distress when her employer wrongfully coerced her to enter an abusive substance abuse program. Crivellaro v. Pennsylvania Power and Light Co., 341 Pa.Super. 173, 491 A.2d 207 (1985). Again relying on Comment c, a panel of this court held that “symptoms of severe depression, nightmares, stress and anxiety, requiring psychological treatment, and ... ongoing mental, physical and emotional harm” sufficiently stated physical manifestations of emotional suffering to sustain a cause of action. Love v. Cramer, supra.
In the case at hand, the plaintiffs’ amended complaint averred that Shirley Krysmalski “became hysterical, unnerved, emotionally shattered and physically sickened as she viewed” her children. That, it seems to me, is the kind of transitory reaction which the Restatement held could not sustain a cause of action for negligent infliction of emotional distress. Krysmalski’s complaint, however, goes on to aver that she suffered “severe depression and an acute nervous condition ... is tortured by flashbacks and nightmares, general emotional trauma, inability to sleep peaceably, all of which conditions are or may be of a serious and permanent nature.” When we return to Crivellaro, supra, and consider the cases which that court collected from other jurisdictions and cited with approval regarding physical harm, we find depression, nightmares, nervousness, insomnia and hysteria. Id. at 180, 491 A.2d at 210. I would conclude, therefore, that the plaintiffs’ amended complaint sufficiently pled bodily harm to sustain a cause of action for negligent infliction of emotional distress. Crivellaro, supra; Love, supra. Bodily harm is, however, only one prong of a cause of action for negligent infliction of emotional distress.
*159To conclude, I dissent from the award of damages to Shirley Krysmalskf s estate for emotional distress not because she was not injured, she was; but because she has failed to prove that the tortious behavior of Tarasovich caused her injury. Her injury stems from the natural, understandable, and wrenching distress of a mother who sees her mutilated children lying in pools of blood. But her reaction was grief, not the shock attendant upon actually seeing the accident happen. Shock is actionable, Sinn v. Burd, supra; grief is not. Brooks, supra.
I also most respectfully dissent on the question of awarding delay damages under Rule 238 and will do so “until the cows come home.”3
Tarasovich offered a settlement of $215,000, $100,000 for each child who lost a leg and $15,000 for David’s cut chin. The jury returned a verdict of more than 12 million dollars. Rule 238 establishes delay damages as interest on the final award payable at a published rate. Delay damages are payable from a period of one year after process is served until verdict, excluding that period of delay attributable to the plaintiff and any period after an offer by the defendant which is 125 percent of the final award. Pa.R.C.P. 238. Tarasovich was assessed an additional three million dollars in delay damages.
Tarasovich argues that he offered the limit of his insurance policy and that he is an indigent. The record indicates otherwise; Tarasovich’s insurer never offered the $300,000 limit of his policy, only the limit of $100,000 for each of the two girls injured. And, the trial court’s finding that Tarasovich was not indigent is amply supported in the record. The Krysmalskis have met the requirements of Pa.C.R.P. 238, the jury award is more than 125 percent of the defendant’s last, best offer and the defendant has failed to demonstrate that he is protected by the indigency exception in Berry v. Anderson, 348 Pa.Super. 618, 502 A.2d 717 (1986) (delay damages will not be assessed when an indigent defendant has offered the full amount available and it was impossible to have offered more).
*160However, Tarasovich also challenges Rule 238 damages on constitutional grounds. I have voiced my feelings on the constitutional infirmities of Pa.R.C.P. 238 repeatedly. See Lilley v. Johns-Manville Corp., 408 Pa.Super. 83, 596 A.2d 203 (1991) (Cirillo, J., concurring); Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc., 398 Pa.Super. 264, 580 A.2d 1341 (1990) (Cirillo, J., concurring); Dietrich v. J.I. Case Co., 390 Pa.Super. 475, 568 A.2d 1272 (1990) (Cirillo, P.J., concurring and dissenting); Schrock v. Albert Einstein Medical Center, 386 Pa.Super. 215, 562 A.2d 875 (1989) (Cirillo, P.J. dissenting); Ceresini v. Valley View Trailer Park, 380 Pa.Super. 416, 552 A.2d 258 (1988) (en banc) (Cirillo, P.J. dissenting); see also Tindal v. Southeastern Pennsylvania Transportation Authority, 385 Pa.Super. 94, 560 A.2d 183 (1989) (en banc) (Cirillo, P.J., concurring and dissenting); Snelsire v. Moxon, 384 Pa.Super. 85, 557 A.2d 785 (1989) (en banc) (Cirillo, P.J., concurring); King v. Southeastern Pennsylvania Transportation Authority, 383 Pa.Super. 420, 557 A.2d 11 (1989) (en banc) (Cirillo, P.J., dissenting); Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 553 A.2d 443 (1989) (en banc) (Cirillo, P.J., dissenting).
Because Rule 238 makes defendants responsible for delays which they did not cause, it violates due process. Rule 238 does not provide for the exclusion of periods of delay not caused by either party. Miller, 381 Pa.Super. at 241, 553 A.2d at 446. This makes defendants culpable simply because they have chosen to defend their cases. Dietrich, 390 Pa.Super. at 491, 568 A.2d at 1280 (Cirillo, P.J., concurring and dissenting).
Although labelled procedural, Rule 238’s application impacts the substantive rights of litigants. The Pennsylvania Constitution vests in the Supreme Court “the power to prescribe general rules governing practice, procedure and the conduct of all courts ... if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant ...” Pa.Const. Art. 5, § 10(c). The Constitution specifically states that the Rules of Civil Procedure do not enlarge the substantive rights of any litigant. Svetlik v. Svetlik, 377 Pa.Super. 496, 500, 547 A.2d 794, 796-97 *161(1988). Because, in my opinion, Rule 238 operates to alter the substantive rights of the parties, it exceeds the rulemaking authority of the Pennsylvania Supreme Court, and is therefore unconstitutional. Dietrich, 390 Pa.Super. at 491, 568 A.2d at 1280 (Cirillo, P.J., concurring and dissenting). Rule 238 denies defendants an exclusion for periods of delay that were the fault of neither party. Consequently, Rule 238 punishes defendants simply because they have chosen to litigate their cases. Dietrich, 390 Pa. Super, at 491, 568 A.2d at 1280 (Cirillo, P.J., concurring and dissenting). Sanctioning a defendant with delay damages is a substantive enlargement of duties owed; an enlargement which under the Constitution of this Commonwealth requires legislative action. Id.
. I add my voice to emphasize agreement with the majority’s footnote one; Tarasovich is not entitled to pick and choose pieces of a panel’s decision in a petition for argument en banc. When this court grants en banc consideration, our review of the case is plenary.
. Justice Musmanno in his famous dissent in the case of the perambulating bovines said he would dissent from the strict application of the impact rule “until the cows come home.” Bosely v. Andrews, 393 Pa. 161, 142 A.2d 263 (1958). Justice Musmanno’s view eventually was adopted in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). When Niederman a “zone of impact” rule became unworkable, this state adopted the foreseeability test of Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979).
. Bosely v. Andrews, Musmanno, J., dissenting, see footnote 2, supra.